County Court, Columbia County

Decided on April 7, 2026

Indictment No. IND-70305-22

Brian J. Herman, J.

[*1]

BACKGROUND

By a twenty count indictment, the defendant and eight others stood charged with multiple counts of Auto Stripping in the First Degree (Penal Law §165.11); Criminal Possession of Stolen Property in the Third Degree (Penal Law §165.50); and Criminal Mischief in the Second Degree (Penal Law §145.10). The charges stemmed from the defendants' participation in a string of catalytic converter thefts in the County of Columbia between May and December, 2022. In proceedings before this court on June 12, 2024, the People proposed that the defendant enter a plea of guilty to one count of Criminal Mischief in the Second Degree, a class D felony, in satisfaction of all charges pending against him in the County of Columbia. In exchange for his plea and a waiver of his right to appeal, the defendant would receive a sentence of five years' probation. Discussion ensued to confirm the charges covered by the proposed plea, following which the court inquired as to whether the proposal was acceptable to the defendant. Through his counsel, the defendant responded in the affirmative.

For purposes of context, under the People's proposal, the defendant's plea would cover the following pending charges:

1. Auto Stripping in the First Degree (PL §165.11 — D felony) (Count One - Indictment No. 70305-22)

2. Criminal Possession of Stolen Property in the Third Degree (PL §165.50 — D felony) (Count Two - Indictment No. 70305-22)

3. Criminal Possession of Stolen Property in the Third Degree (PL §165.50 — D felony) (Count Three - Indictment No. 70305-22)

4. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Five — Indictment No. 70305-22)

5. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Six — Indictment No. 70305-22)

6. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Seven — Indictment No. 70305-22)

7. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Eight — Indictment No. 70305-22)

8. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Nine — Indictment No. 70305-22)

9. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Ten — Indictment No. 70305-22)

10. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Eleven — Indictment No. 70305-22)

11. Criminal Mischief in the Second Degree (PL §145.10 — D felony) (Count Twelve — Indictment No. 70305-22)

12. Auto Stripping in the First Degree (PL §165.11 — D felony) (Count Thirteen — Indictment No. 70305-22)

13. Criminal Possession of Stolen Property in the Third Degree (PL §165.50 — D felony) (Count Sixteen — Indictment No. 70305-22)

14. Criminal Possession of a Controlled Substance in the Third Degree (PL§220.16[12] — B felony) (Count Eighteen — Indictment No. 70305-22)

15. Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16[1] — B felony) (Count Nineteen — Indictment No. 70305-22)

16. Conspiracy in the Fifth Degree (PL §105.05[1] — A misdemeanor) (Count Twenty — Indictment No. 70305-22)

17. Grand Larceny in the Third Degree (PL §155.35[1] — D felony) (sole count — Indictment No. 70303-22)

18. Operating a Motor Vehicle Impaired by Drugs (VTL §1192[4] — U misdemeanor) (alleged offense date: 5/29/22 — Claverack Town Court)

19. Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03 — A misdemeanor) (alleged offense date: 5/29/22 — Claverack Town Court)

20. Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03 — A misdemeanor) (alleged offense date: 5/29/22 — Claverack Town Court)

21. Aggravated Unlicensed Operation in the Second Degree (VTL §511[2] — U misdemeanor) (alleged offense date: 5/29/22 — Claverack Town Court)

22. Stop Light Violation (VTL §1111[d] — violation) (alleged offense date: 5/29/22 — [*2]Claverack Town Court)

23. Criminal Possession of a Controlled Substance in the Fifth Degree (PL §220.06 — D felony) (alleged offense date: 10/10/22 — Hudson City Court)

24. Criminal Possession of a Controlled Substance in the Fifth Degree (PL §220.06 — D felony) (alleged offense date: 11/21/22 — Claverack Town Court)

25. Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03 — A misdemeanor) (alleged offense date: 11/21/22 — Claverack Town Court)

26. Aggravated Unlicensed Operation in the Second Degree (VTL §511[2] — U misdemeanor) (alleged offense date: 12/5/22 — Claverack Town Court)

27. Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03 — A misdemeanor) (alleged offense date: 4/28/24 — Greenport Town Court)

28. Stop Sign Violation (VTL §1172[a] — violation) (alleged offense date: 4/28/24 — Greenport Town Court)

29. Operating a Motor Vehicle without a License (VTL §509 — violation) (alleged offense date: 4/28/24 — Greenport Town Court)

30. Reckless Endangerment in the First Degree (PL §120.25 — D felony) (alleged offense date: 5/2/24 — Hudson City Court)

31. Reckless Driving (VTL §1212 — U misdemeanor) (alleged offense date: 5/2/24 — Hudson City Court)

32. Aggravated Unlicensed Operation in the Second Degree (VTL §511[2] — U misdemeanor) (alleged offense date: 5/2/24 — Hudson City Court)

33. Operating a Motor Vehicle without a License (VTL §509 — violation) (alleged offense date: 5/2/24 — Hudson City Court)

34. Failure to Obey a Police Officer (VTL §1102 — violation) (alleged offense date: 5/2/24 — Hudson City Court)

35. Stop Sign Violation (VTL §1172[a] — violation) (alleged offense date: 5/2/24 — Hudson City Court)

36. Failure to Obey a Traffic Control Device (VTL §1110[a] — violation) (alleged offense date: 5/2/24 — Hudson City Court)

37. Unsafe Passing (VTL §1124 — violation) (alleged offense date: 5/2/24 — Hudson City Court)

38. Speed Not Reasonable and Prudent (VTL §1180[a] — violation) (alleged offense date: 5/2/24)

39. Unsafe Lane Change (VTL §1128[a] — violation) (alleged offense date: 5/2/24 — Hudson City Court)

40. Stop Light Violation (VTL §1111[d] — violation) (alleged offense date: 5/2/24 — Hudson City Court)

41. Failure to Keep Right (VTL §1120[a] — violation) (alleged offense date: 5/2/24 — Hudson City Court)

42. Failure to Stop from Alley (VTL §1173 — violation) (alleged offense date: 5/2/24 — Hudson City Court).

After confirming the terms of the plea agreement, the court engaged the defendant in a plea colloquy, substantively and sequentially identical to the Model Plea Colloquy distributed by the New York State Unified Court System for use by trial courts in taking a plea of guilty to a [*3]felony charge. The defendant allocuted to engaging in conduct constituting Criminal Mischief in the Second Degree in violation of Penal Law §145.10. He then acknowledged and waived his trial and appellate rights. The colloquy proceeded with the court's remarks as to the agreed-upon sentence and its conditional nature:

THE COURT: As a condition of your plea, I have, thus far, committed to a sentence of five years' probation. Do you understand?

THE DEFENDANT: Yes, sir.

[standard admonitions regarding probation sentences omitted]

THE COURT: Under our law, a court's sentence commitment is conditional. What that means is that between now and the time of sentence, I will be provided with a pre-sentence report and perhaps additional information about you and this case. If, after reviewing that material, I am prepared to impose the promised sentence, then I will do so. If I change my mind and decide not to impose the promised sentence, I will tell you that and permit you to withdraw your guilty plea and go to trial. If, however, you violate a condition of this plea that I have set forth, I will not permit you to withdraw your plea and I will be at liberty to sentence you to any authorized sentence. Do you understand?

THE DEFENDANT: Yes, sir.

[standard admonitions regarding collateral consequences of plea (deportation/exclusion from the United States; loss of right to vote) and waiver of right to discovery omitted]

THE COURT: There are conditions that you must comply with between now and the time of sentence. First, you must meet with the probation officer assigned to prepare your pre-sentence report. You must return to court when required. And you must not commit any offense between now and the time of sentence [ . . . ]

THE DEFENDANT: Yes.

THE COURT: Do you understand each of those conditions?

THE DEFENDANT: Yes.

THE COURT: If you fail to comply with any one or more of those conditions, I will not be bound by the sentence commitment, I will not permit you to withdraw you plea of guilty, and I will be at liberty to sentence you to any authorized sentence, including a sentence of imprisonment of up to — what, two and a half years?

THE PEOPLE: I believe it's two to four your honor.

THE COURT: Two to four years — or any legal sentence I'm allowed to. Do you understand?

THE DEFENDANT: Yes.

Further colloquy on issues of post-release supervision, voluntariness and future sentencing enhancements was had, whereupon the court found the defendant's plea was made knowingly, intelligently and voluntarily, accepted it, and entered it upon the record. A sentencing date was fixed and the court was handed up the "plea in satisfaction" form for signature. While reviewing the document, the People were heard:

THE PEOPLE: Judge, just so the record is clear, his maximum sentence is seven years' incarceration if he were to be sentenced to the maximum, just so that the record is clear.

THE COURT: Thank you. Do you understand that Mr. Hapeman?

THE DEFENDANT: Yes, sir.

Brief discussion followed regarding the defendant's bail status, sentencing was scheduled for July 24, 2024 and the proceedings concluded.

In the interim, the court received correspondence from the Columbia County Probation Department indicating that the defendant failed to appear for his scheduled interview without calling and had been unreachable since. A bench warrant issued and sentencing was adjourned to August 28, 2024. The defendant failed to appear for sentencing and, once again, a warrant issued. Upon his return to court, the defendant was remanded and sentencing was adjourned to September 16, 2024. The defendant was not, however, sentenced on September 16, 2024. That day commenced a series of four appearancesFN1 at which the court entertained arguments as to why the defendant should not be sentenced. Having granted adjournments to evaluate the defendant for treatment court; to allow for completion of the defendant's parole hearing; to obtain and review the transcript of the defendant's plea proceeding; and to allow the defense to obtain an evaluation of the defendant's mental health, the court ultimately sentenced the defendant on April 23, 2025.

Unbound by its commitment to a sentence of probation (see People v Bove, 64 AD3d 812 [Third Dept. 2009]) (where agreed-upon sentence is conditioned upon defendant's appearance at sentencing, trial court was free to impose maximum sentence following defendant's failure to appear), the defendant was sentenced to an indeterminate term of 2-1/3 to 7 years' incarceration. The defendant now moves to set aside his sentence pursuant to CPL §440.20. The People oppose.

ANALYSIS

In his moving papers, the defendant acknowledges being advised that his failure to comply with the conditions of his plea could result in an enhanced sentence. He further acknowledges that he failed to appear for sentencing due to his cocaine use and that this was in violation of his plea agreement. Notwithstanding these concessions, the defendant argues, "I should not have been sentenced to a term beyond 2-4 as it was stated at the time of my plea that 2-4 years was the maximum sentence I could receive. I would not have entered the plea if I had known the sentence could be as long as 7 years. I was under the assumption that the worst I could have received was 2-4 [ . . . ] none of the co-defendants in my case, even the alleged ring leaders, received a state prison sentence. I was not a ringleader [ . . . ] rather, I was [an] addict who made some mistakes to support my addiction." In his affirmation, defense counsel argues that the court's misstatement in this regard rendered the imposed sentence of 2-1/3 to 7 years violative of the defendant's right to due process.

A court determining the voluntariness of a plea must review the record as a whole and the circumstances of the plea in its totality (People v Harris, 61 NY2d 9, 19 [1983]). Factors to be evaluated include "the seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the plea bargain, and the pace of the proceedings in the particular criminal court" (id. at 16). "That the defendant allegedly received inaccurate information regarding his possible sentence exposure is another factor which must be considered by the court, but it is not, in and of itself, dispositive" (People v Garcia, 92 NY2d 869, 870 [1998]).

From the vast universe of decisional law, the defense has failed to draw upon an instance [*4]where a single misstatement of sentence exposure — corrected moments later — compelled the conclusion that a plea was involuntary, or that a sentence was illegally imposed. On the other hand, examples abound of similar uncorrected misstatements being deemed insufficient to support a finding that a plea was involuntarily entered. Whether the misstatement was the court's (People v Burnett, 221 AD2d 355 [Second Dept 1995]), the prosecutor's (People v Johnson, 24 AD3d 1259 [Fourth Dept 2005]) or the defense attorney's (People v Gaity, 216 AD3d 667 [Second Dept 2023]), if it could not have influenced the defendant's decision to plead guilty, the plea and sentence will remain undisturbed (see Garcia, 92 NY2d at 870; People v Mack, 140 AD3d 791 [Second Dept 2016]; and People v Bravo, 72 AD3d 697 [Second Dept 2010]).

For the reasons that follow, the court finds the defendant's assertions, insofar as they pertain to his internal calculus, wholly specious, and his application an exercise in opportunism without legitimate basis in law or fact.

It should be noted that neither the defendant nor his counsel acknowledge that the misstatement at issue was corrected within mere moments.FN2 For good and legitimate reasons: accuracy of the record; avoidance of claims of confusion or misinformation; fundamental fairness, etc., the People undertook to ensure that the defendant was accurately apprised of the maximum sentence that could be imposed on his plea. In declining to address these curative efforts, the court is constrained to conclude that the defense believes them of no significance whatsoever. The court feels otherwise.

THE PEOPLE: Judge, just so the record is clear, his maximum sentence is seven years' incarceration if he were to be sentenced to the maximum, just so that the record is clear.

THE COURT: Thank you. Do you understand that Mr. Hapeman?

THE DEFENDANT: Yes, sir.

Insofar as this exchange immediately followed a lengthy recitation of the conditions of his plea and the potential consequences of his noncompliance — conditions and consequences the defendant had also just acknowledged, there is no argument withstanding credulity that the defendant could not or did not comprehend the significance of this information. His response to the accurate information was not confusion. It was not to inquire as to the pertinence of incarceration when the plea agreement called for probation only. His response to the accurate information was identical to that of the earlier misstatement: "yes, sir." Based on these responses, there is no indication in the record that the defendant relied upon an incorrect understanding of his sentencing exposure in deciding to plead guilty (People v Keller, 168 AD3d 1098 [Second Dept 2019]).

Turning now to the rationality of the plea bargain, in exchange for his plea of guilty and probation sentence, the defendant stood to avoid prosecution on 42 pending charges: 19 felonies, 10 misdemeanors and 13 violations. All that was required of the defendant was that he cooperate with probation and appear for sentencing. In light of these circumstances and the defendant's criminal history (51 arrests, 6 felony convictions, 26 misdemeanor convictions and 7 instances of failing to appear in court), the court finds disingenuous the notion that a potential enhanced sentence of 2-4 years was acceptable to the defendant, but that 2-1/3 to 7 years was a [*5]bridge too far.

There being no indicia of the defendant's reliance upon an incorrect understanding, and because he "agreed to plead guilty before the court made the misstatement in question, had experience with the criminal justice system, and the plea bargain was advantageous" the defendant has failed to demonstrate that his plea was not knowing, voluntary and intelligent (see People v Principato, 194 AD3d 851, 852-853 [Second Dept 2021; see also People v Hayes, 220 AD3d 427, 428 [First Dept 2023]).

CONCLUSION

The potential benefit so great and the burden so minimal, it is unfortunate that the defendant failed to adhere to the terms of the plea agreement. However, his failings and their consequences are his own — not those of his counsel, the People, the court, nor his co-defendants. As to the defendant's contention that he was not the "ringleader" of this enterprise, but is the only member to have been incarcerated, in fashioning an appropriate sentence the court is not limited in its consideration to the circumstances of the present offense. It is well settled that a sentencing court is permitted to consider all relevant factors in arriving at a sentence (People v Walker, 53 AD3d 672, 673 [Second Dept 2008]). In this case, the court's sentencing determination was rendered with due deliberation having been had on the defendant's criminal history, the criminal conduct to which he allocuted and his failure to adhere to the terms of the plea agreement. Under these circumstances, the enhanced sentence of 2-1/3 to 7 years is appropriate and shall remain undisturbed.

Accordingly, it is hereby

ORDERED that the motion is denied.

Dated: April 7, 2026

Hudson, New York

Hon. Brian J. Herman

County Court Judge

Papers considered:

1. Notice of Motion of John R. McFadden, Esq., dated January 14, 2026

2. Affidavit of Defendant, sworn to on December 24, 2026

3. Affirmation of John R. McFadden, affirmed January 14, 2026, with exhibits

4. Affirmation in Opposition of Cheryl A. Botts, Esq., affirmed February 17, 2026

5. Indictment No.: IND-70303-22

6. Indictment No.: IND-70305-22

7. Court file